Visitation from civil union argued before Supreme Court

An attorney for Lisa Miller-Jenkins told the Supreme Court of Virginia on Thursday that nothing about a same-sex civil union in Vermont can be recognized in Virginia.

The Virginia Constitution and the federal Defense of Marriage Act prevent the state from enforcing a visitation order entered in favor of Janet Miller-Jenkins by a Vermont trial court and upheld by the Vermont Supreme Court, said Mathew Staver, the head of Liberty Counsel and dean of the Liberty University law school.

Joseph R. Price, the Washington attorney who represents Janet, responded that the federal Parental Kidnapping Prevention Act and the full faith and credit clause of the U.S. Constitution require Virginia courts to honor the visitation order.

Lisa Miller-Jenkins and Janet Miller-Jenkins were Virginia residents in 2000 when they traveled to Vermont to join in a civil union. Lisa Miller-Jenkins conceived a child through artificial insemination in 2001 while the couple was together and a child, Isabella, was born the following April. They moved full-time to Vermont in August 2002.

In the fall of 2003, the women separated and Lisa Miller-Jenkins moved back to Virginia. She filed in Vermont for dissolution of their civil union, which is akin to a divorce, and sought custody of Isabella.

In June 2004, a Vermont family court granted Janet Miller-Jenkins visitation rights; that October, a Frederick County court issued a contradicting decision.

In August 2006, the Vermont Supreme Court ruled that Vermont courts had exclusive jurisdiction in the custody battle. The Virginia Court of Appeals agreed two months later in Miller-Jenkins v. Miller-Jenkins (VLW 006-7-436).

In April 2007, the U.S. Supreme Court also refused to hear Lisa Miller-Jenkins’ appeal of the Vermont court ruling.

The case has become something of a procedural mess since then. The Virginia Supreme Court rejected Lisa’s appeal of the 2006 Court of Appeals decision because the notice of appeal was filed late.

In the meantime, however, the Frederick County judge had refused to register the Vermont visitation order, and the Court of Appeals reversed that ruling in light of its earlier decision, and the Supreme Court agreed to hear the appeal of that decision.

Price contended last week that the law-of-the-case doctrine bars consideration of the Lisa’s second appeal because it involves “the same parties on the same facts on the same legal issues” that were presented in the first appeal.

He also argued that Lisa, having subjected herself to the jurisdiction of Vermont courts, was engaging in precisely the type of forum-shopping that the federal parental kidnapping law is designed to prevent.

The Supreme Court is expected to decide the case on June 6.